OCEAN RIDGE BLVD. SOUTH, RECEIVED, … So. 2d 1 (Fla. 4th DCA 1984) ... See section 90.202, Florida Statutes. See also, Notice of Related Case filed in this appeal on August 23, 2016

COLE, SCOTT & KISSANE, P.A.

IN THE DISTRICT COURT OF THE STATE OF FLORIDA

FIFTH DISTRICT

Case No.: 5D16-1829

L.T. Case No.: 2014-CA-298

OCEAN RIDGE BLVD. SOUTH,

LLC, a Florida limited liability

company, MARK VOSS, an

individual and BRENDA VOSS,

an individual,

Appellants,

v.

OCEAN HAMMOCK PROPERTY

OWNERS ASSOCIATION, INC., a

Florida corporation,

Appellee.

/

ANSWER BRIEF OF APPELLEE OCEAN HAMMOCK

PROPERTY OWNERS ASSOCIATION, INC.

On Appeal From the Circuit Court of the Seventh

Judicial Circuit in and for Flagler County, Florida


Attorneys for Appellee

Cole, Scott & Kissane Building, Suite 1400

9150 South Dadeland Boulevard

Miami, Florida 33156

Telephone: (305) 350-5300

Facsimile: (305) 373-2294

Email: [email protected]

Email: [email protected]

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TABLE OF CONTENTS

Page

TABLE OF CITATIONS ........................................................................................ iii

PREFACE .................................................................................................................. 1

STATEMENT OF THE CASE AND FACTS ......................................................... 3

1. Introduction ...................................................................................................... 3

2. Factual Background ......................................................................................... 4

3. Disposition in the Lower Court ....................................................................... 9

SUMMARY OF THE ARGUMENT ...................................................................... 13

ARGUMENT ........................................................................................................... 16

THE TRIAL COURT CORRECTLY DECLARED THAT

AMENDMENTS TO ASSOCIATION’S DECLARATION WERE

PROPERLY ENACTED UPON THE AFFIRMATIVE VOTE OF

TWO-THIRDS OF THE VOTES OF ASSOCIATION MEMBERS

WHO WERE PRESENT IN PERSON OR BY PROXY AT A

DULY CALLED MEETING OF THE MEMBERSHIP ............................. 16

I. The Lower Court’s Interpretation Of The Declaration's

Amendment Clause Is Reviewed De Novo ........................................ 17

II. The Amendment Clause Was Correctly Construed By The

Lower Court Based Upon Its Plain Language.................................... 18

A. The Amendment Clause Contains Alternative Methods

for Adoption of Amendments to the Declaration ..................... 20

1. The last sentence of the Amendment Clause

specifying that an amendment is "effective upon

recordation" does not relate to a method of

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amendment, but only to the effective date of the

enacted amendment ...................................................... 24

2. The phrase "who shall be present" means "who

are present" for purposes of the voting

procedures in the Amendment Clause ........................... 27

B. Owner's Interpretation of the Voting Requirements in

the Amendment Clause was Properly Rejected as

Unreasonable. ........................................................................... 30

III. The Declaration Contains Procedural Safeguards To Ensure

That Association Members Have The Opportunity To

Participate In The Governance Of Their Community ........................ 31

CONCLUSION ....................................................................................................... 35

CERTIFICATE OF SERVICE ................................................................................36

CERTIFICATE OF COMPLIANCE .......................................................................36

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TABLE OF CITATIONS

Page

Cases

American Med. Int'l, Inc. v. Scheller,

462 So. 2d 1 (Fla. 4th DCA 1984) ................................................................. 22, 30

Apple II Condo. Ass’n v. Worth Bank & Trust Co.,

659 N.E. 2d 93 (Ill. Ct. App. 1995) ........................................................................ 34

Bethany Trace Owners' Ass'n, Inc. v. Whispering Lakes I, LLC,

155 So. 3d 1188 (Fla. 2d DCA 2014) ..................................................................19

Bugg v. City of Boonville,

372 S.W. 3d 76 (Mo. Ct. App. 2012) .................................................................. 28

Concerned Citizens of Putnam Cty. for Responsive Gov't v.

St. Johns River Water Management Dist.,

622 So. 2d 520 (Fla. 5th DCA 1993) ...................................................................29

Fi-Evergreen Woods, LLC v. Estate of Vrastil,

118 So. 3d 859 (Fla. 5th DCA 2013) ...................................................................25

Gaines v. Sayne,

764 So. 2d 578 (Fla. 2000) ...................................................................................26

Humane Soc'y of Broward Cty., Inc. v. Fla. Humane Soc'y,

951 So. 2d 966 (Fla. 4th DCA 2007) .................................................................. 28

Jerry's, Inc. v. City of Miami,

591 So. 2d 1000 (Fla. 3d DCA 1991) ..................................................................27

Klinow v. Island Court at Boca W. Prop. Owners' Ass'n, Inc.,

64 So. 3d 177 (Fla. 4th DCA 2011) .....................................................................17

Le Scampi Condo. Ass'n, Inc. v. Hall,

2016 WL 3653520 (Fla. 2d DCA July 8, 2016) ..................................................17

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Lowe v. Winter Park Condo. Ltd. P'ship,

66 So. 3d 1019 (Fla. 5th DCA 2011) ...................................................................18

Loyal Oak Swim Club, Inc. v. City of Norton,

1990 WL 51988 (Ohio Ct. App. Apr. 25, 1990) ..................................................28

Retreat at Port of the Islands, LLC v.

Port of the Islands Resort Hotel Condo. Ass'n, Inc.,

181 So. 3d 531 (Fla. 2d DCA 2015) ............................................................. 17, 18

Shields v. Andros Isle Prop. Owners Ass’n, Inc.,

872 So. 2d 1003 (Fla. 4th DCA 2004) .................................................................17

Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass'n, Inc.,

169 So. 3d 197 (Fla. 1st DCA 2015) ...................................................................19

Universal Prop. & Cas. Ins. Co. v. Johnson,

114 So. 3d 1031 (Fla. 1st DCA 2013) .................................................................30

Webster v. Ocean Reef Cmty. Ass’n, Inc.,

994 So. 2d 367 (Fla. 3d DCA 2008) ....................................................................16

Whitley v. Royal Trails Prop. Owners' Ass'n, Inc.,

910 So. 2d 381 (Fla. 5th DCA 2005) .......................................... 17, 18, 19, 31, 32

Woodside Vill. Condo. Ass’n, Inc. v. Jahren,

806 So. 2d 452 (Fla. 2002) ............................................................................ 33, 34

Constitution and Statutes

Article III, Section 9, Florida Constitution ..............................................................26

Chapter 720, Florida Statutes ..................................................................................... 5

Section 90.202, Florida Statutes ................................................................................ 4

Section 720.301 (8), Florida Statutes ...................................................................5, 25

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Section 720.306, Florida Statutes ............................................................................32

Other Authorities

Black's Law Dictionary 611 (10th ed. 2014) ...........................................................33

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PREFACE

This Answer Brief is submitted on behalf of Appellee Ocean Hammock

Property Owners Association, Inc., the prevailing Defendant below. The following

references may be used throughout this Answer Brief:

1. Ocean Hammock Property Owners Association, Inc. –

“Association”

2. Mark Voss, Brenda Voss, and Ocean Ridge Blvd. South, LLC

(Plaintiffs below) – collectively, “Owner”

3. 2001 Amended and Restated Master Declaration of Covenants,

Conditions and Restrictions for Ocean Hammock (recorded

June 28, 2001, in Flagler County, Official Records Book 753,

pages 1118-1275) – “Declaration”

4. Article XI, Section 1 of the Declaration – “Amendment Clause”

5. The three amendments to the Declaration, enacted at a meeting

of the Association’s membership held on December 7, 2013,

recorded in the public records of Flagler County on December

13, 2013, and which are the subject of this appeal – “2013

Amendments”

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The Record on Appeal consists of eight volumes, consecutively paginated.

References to the Record will be designated “R. [page number]”.

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STATEMENT OF THE CASE AND FACTS

1. Introduction

This appeal arises from the Final Judgment entered by the lower court in

favor of Association. Owner unsuccessfully challenged below the proper actions

taken by the Association in conducting a vote of the membership with respect to

the 2013 Amendments to its Declaration. Article XI, Section 1, the Declaration’s

Amendment Clause, provides:

Section I. Amendments by Owners. Except as to provisions

relating to amendments set forth herein regarding certain

specific items and the method of amending or altering same,

any other provisions, covenants, or restrictions set forth herein

may be amended in accordance with this provision. The holders

of at least two-thirds (2/3) of the votes in the Association,

without regard to class may change or amend any provision

hereof (1) by executing a written instrument in recordable form

setting forth such amendment, or (2) by causing a certified copy

of a duly adopted resolution to be recorded in the Public

Records of Flagler County, Florida. A proposed amendment

may be initiated by Declarant, Northshore, Northshore

Investment, the Association, or by petition signed by ten

percent (10%) of the Owners. If a proposed amendment is to be

adopted by vote, a written copy of the proposed amendment

shall be furnished to each Owner at least thirty (30) days but

not more than ninety (90) days prior to the meeting to discuss

the proposed amendment. If adopted by vote, affirmative vote

required for adoption shall be two thirds (2/3) of the votes of

the Members (without regard to class) who shall be present in

person or by proxy at a meeting duly called, and the recorded

certificate shall contain a recitation that notice was given as

above set forth and said recitation shall be conclusive as to all

parties, and all parties of any nature whatsoever shall have full

right to rely upon said recitation in such recorded certificate.

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The amendment shall be effective upon recordation of the

executed amendment or the certified copy of the duly adopted

resolution among the Public Records of Flagler County,

Florida.

(emphasis added).

The core issue concerns the number of affirmative votes required to pass an

amendment. As noted by the lower court in the partial summary judgment entered

in favor of Association,1 it was asked to determine whether the required vote was:

“a) a two-thirds affirmative vote of all the membership voting interests in the

Association, or b) a two-thirds affirmative vote of the members present at a duly

called meeting.” (R. 746). The trial court correctly ruled that the requisite number

of affirmative votes was cast by members voting in person or by proxy at the duly

called meeting of December 7, 2013.

2. Factual Background

Owner’s Initial Brief inserts argument and improper parol evidence into its

factual recitations. Therefore, Association submits the following so that only

factual matters are highlighted.2

1 The Order entering the partial summary judgment in Association’s favor was

incorporated into the Final Judgment. (R. 855-856). 2 Association also refers this Court to the briefs and record filed in the related

appeal styled Eleven Ocean Oaks, LLC v. Ocean Hammock Property Owners

Association, Inc., Case No. 5D16-568 (“Eleven Ocean”). Common factual matters

are set forth in greater detail therein. See section 90.202, Florida Statutes. See also,

Notice of Related Case filed in this appeal on August 23, 2016.

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Ocean Hammock Property Owners Association, Inc., located in Flagler

County, is a Florida not for profit corporation and a homeowners’ association

subject to the provisions of chapter 720, Florida Statutes. It was incorporated in

1997, and its first declaration of covenants and restrictions was filed on April 15 of

that year. (R. 635-717). Its current governing documents, filed June 28, 2001,

include its master declaration, articles of incorporation and bylaws.3 (R. 239-358).

At the time of the 2001 restatement of the Declaration, the original developer,

Lowe Ocean Hammock, Ltd., still controlled the Ocean Hammock community. (R.

504-510).

Owner’s property is located at 22 Ocean Ridge Blvd. South. (R. 719). Mark

and Brenda Voss first purchased the property in August of 2013, with, as alleged,

“the intent to rent the Property for residential purposes.” (R. 719). The Vosses

transferred ownership of the property to Ocean Ridge Blvd. South, LLC, pursuant

to a Warranty Deed dated February 17, 2014 (R. 34-35). The Vosses are the

managing members of Ocean Ridge Blvd. South, LLC. (R. 720).

3 As provided in section 720.301(8), Florida Statutes, a homeowners’ association’s

“governing documents” include the recorded declaration, the articles of

incorporation, the bylaws, and all adopted and recorded amendments. The only

amendments relevant to this appeal are those passed during the meeting of

December 7, 2013, as discussed herein.

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By virtue of its ownership of the real property, Owner is a member of the

Ocean Hammock Property Owners Association. Owner is subject to the

Association’s governing documents.4

In 2013, the Association’s Board of Directors promulgated three proposed

amendments to the Declaration concerning the use of single family residences for

short term rentals. See Amended Complaint, Ex. A. (R. 728-731), which contains

the 2013 Amendments in full, in the referendum format as sent to the members

prior to the vote. Accompanying the proposed amendments was a limited proxy

form for purposes of voting.5 (R. 732-733). A town hall meeting was held on

October 24, 2013, to inform Association members of the proposed amendments.

(R. 225).

4 Pursuant to Article III, Section 2 of the Declaration, each owner shall be a

member of the Association. (R. 262). See also Article I, Section 23 (“Member

shall mean and refer to each owner who is a member of the Association as

provided in Section 2 of Article III”) (R. 252); Section 35 (“Owner shall mean and

refer to the record holder, whether one or more persons or entities, of fee simple

title to any Unit”) (R. 254); and Section 42 (“Unit shall mean and refer to either a

Residential Unit or a Non-Residential Unit”) (R. 256). 5 The limited proxy form references a November 21, 2013 meeting date, but it is

undisputed that the meeting date was changed to the annual meeting scheduled for

December 7, 2013. There are no issues in this lawsuit concerning whether the

required notice regarding the upcoming vote was given.

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In the Final Judgment in the related Eleven Ocean case, attached as an

exhibit to Association’s Motion for Final Summary Judgment filed herein, the trial

court described the 2013 Amendments as follows:

Essentially, the proposed amendments would impose a

maximum number of bedrooms on new construction, prohibit

the addition of bedrooms to existing construction, and allow the

Association’s Architectural Review Board to enforce

reasonable minimum and maximum square footage

requirements, along with the number of garage and driveway

spaces necessary for new residential construction. Next, the

amendments imposed a prohibition on using residential units as

short-term rentals after December 31, 2016, with limitations on

the frequency of short-term rentals prior to that time. Finally,

the amendments sought to alter the ‘Miscellaneous Covenants’

in the Declaration with respect to off-street parking, conversion

of garages to living areas, and the maximum permissible

overnight occupancy in residential properties.

(R. 840). Also noteworthy is the ‘Sunset Date” contained in the 2013

Amendments. As regards the frequency of short-term rentals, the enacted

amendment is not fully effective for three years, until December of 2016. (R. 737).

Further, said amendment allows short-term rentals after the effective date, but

limits them to three per year. (R. 737).

On December 7, 2013, the annual meeting of Association’s membership was

convened, and on the agenda was a vote on the proposed amendments. There is no

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dispute in the record that the quorum necessary to conduct the scheduled business

was in attendance.6

Both Association and Owner7 agree that at the time at the time of the subject

vote on the proposed amendments: a) there were 1078 voting interests (i.e.

members) in the Association, b) of the 1078 voting interests, approximately 1050

were authorized to cast votes, and c) at the December 7, 2013 meeting, 759 votes

were cast in person or by proxy. (R. 174, 225). The votes on the amendments were

as follows:

•Referendum 1 received a total of 643 affirmative/yes votes.



(R. 174, 225). Again, by reference to the Final Judgment in the related Eleven

Ocean case, the trial court noted that it was not disputed “that the Association gave

proper notice of the December 7, 2013 meeting, that a quorum was present, and

that the amendments were approved by two-thirds of the votes of the members who

were present in person or by proxy.” (R. 848, n. 9).

6 Previously, at a meeting on February 28, 2013, the Association’s Bylaws were

amended to provide that a quorum at a meeting of the members “shall consist of

the presence, either in person or by proxy, of persons entitled to cast at least

twenty-five percent (25%) of the total voting interests in the Association….” (R.

392). This amendment was recorded on March 22, 2013. (R.392-393). 7 See Initial Brief, p. 6.

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A Certificate of Amendment, certifying the adoption of the 2013

Amendments in accordance with Article XI, Section 1 of the Declaration, was

recorded on December 13, 2013. (R. 734-739). The amendments took effect on the

date of recordation, as provided in the last sentence of the Amendment Clause

which states, “The amendment shall be effective upon recordation of the executed

amendment of the certified copy of the duly adopted resolution among the Public

Records of Flagler County, Florida.” (R. 301).

3. Disposition in the Lower Court

On April 30, 2014, some months after the passage of the 2013 Amendments,

Owner filed its two-count lawsuit seeking declaratory relief. (R. 3-22). Count I of

the lawsuit challenged the manner in which the amendments were adopted; Count

II challenged the substance of the amendments themselves. After denial of its

Motion to Dismiss the Complaint, (R. 25-35), Association answered the Complaint

and affirmatively defended. (R. 59-66). Owner filed its Amended Complaint on

April 8, 2015, (R. 718-739), and Association answered and raised its affirmative

defenses. (R. 753-759). The allegations pertinent to the subject of this matter

appeal, Count I, are essentially identical in the Complaint and the Amended

Complaint.

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On March 28, 2016, Owner voluntarily dismissed Count II of the Amended

Complaint (R. 850-851). Association agrees with Owner’s representation that

Count II is not relevant to this appeal. See Initial Brief, p. 8, n. 4.

Owner filed a Motion for Partial Summary Judgment on March 3, 2015. (R.

149-161). In the motion, Owner asked the lower court for a ruling affirming its

interpretation of the “unambiguous” voting requirement couched in the “plain

language” of the Amendment Clause – specifically, that a two-thirds affirmative

vote of the entire membership’s voting interests in the Association is required to

pass an amendment, and that the phrase “who shall be present in person or by

proxy at a meeting duly called” makes mandatory the actual attendance of two-

thirds of the total membership. Plaintiffs’ Motion for Partial Summary Judgment,

¶¶ 10, 11, 14. (R. 153-154).8

8 After submitting the Motion for Partial Summary Judgment, Owner filed

transcripts of depositions taken of Association’s corporate representative and of

Edward Ginn, III. Neither was relied upon by the parties in the summary judgment

proceedings, and neither was referenced in the lower court’s partial summary

judgment order. Further, as noted in the Eleven Ocean Final Judgment, testimony

from Mr. Ginn would violate the parol evidence rule, given the position of the

parties – and the agreement of the lower court – that the wording of the

Amendment Clause is unambiguous. (R. 844). Owner’s Initial Brief, p. 5,

inappropriately references statements from Mr. Ginn, which likewise would

constitute improper parol evidence. Association submits that these statements

should be disregarded, as should Owner’s “invitation” to the Court to review the

Amendment Clause for ambiguity, when it is not an issue that has been raised or

argued by either party. See Initial Brief, p. 10, n. 5.

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Association responded in opposition to the Motion for Partial Summary

Judgment on March 27, 2015. (R. 222-399). Association did concur, however, that

the voting requirements in the Amendment Clause are unambiguous and that the

plain language of the clause governs – although Association’s interpretation of

what this plain language provides differs from Owner’s. Defendant’s Reply in

Opposition to Plaintiffs’ Motion for Partial Summary Judgment, ¶ 20 (R. 228-229).

Specifically, Association disagreed that where a proposed amendment is put to a

vote of the membership that the Amendment Clause requires both the mandatory

attendance, in person or by proxy, and the affirmative vote of two-thirds of the

entire voting membership at a meeting in order for the amendment to pass. Rather,

Association argued that, read in its entirety, the provision for the vote by the

membership of two-thirds of those present in person or by proxy at a duly called

meeting, with prior notice given to each owner of the proposal, comports with the

requirement of the Amendment Clause and “allows a way for amendments …to be

considered by all Members, and lets those Members who are interested in the

outcome have a clearly set forth path to support, oppose, or abstain from voting on

the same.” Defendant’s Reply, ¶ 22 (R. 229).

On April 28, 2015, the Order on Owner’s Motion for Partial Summary

Judgment was entered, and the ruling adopted the Association’s construction of the

Amendment Clause. (R. 744-750). In its Order, the court noted that the “parties

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agree that the Amendment Clause is unambiguous.” (R. 746). The court, as well,

found “that the word ‘shall’ as used in the Amendment Clause is unambiguous.”

(R. 748). The trial court ruled that

the Association’s construction of the Amendment Clause is the

most reasonable one. Specifically, the Court agrees with the

Association that in this context, the phrase ‘who shall be

present’ in the fifth sentence means ‘who are present.’ While

the language in the fifth sentence of the Amendment Clause

may be a bit stilted, in no way is it ambiguous. The sentence

requires that in order to amend the Declaration by vote, the

amendment must receive an affirmative vote of two-thirds of

the members who are present in person or by proxy at a

meeting duly called. Nowhere does that sentence impose an

additional requirement that two-thirds of the entire Association

membership attends the meeting at which the vote is taken, and

the sentence cannot reasonably be read otherwise.

(R. 748).

After the entry of the Final Judgment in favor of Association in the Eleven

Ocean lawsuit, Association filed in this case its Motion for Final Summary

Judgment, on March 7, 2016. (R. 773-849). The Eleven Ocean Final Judgment was

attached thereto. (R. 838-849). On the basis of the Eleven Ocean Final Judgment,

entered after a bench trial before Judge Michael Orfinger, the same lower court

judge as in this case, Association requested that final summary judgment be

entered in its favor as to Count I of the Amended Complaint. See Defendant’s

Motion for Final Summary Judgment, ¶ 14 (R. 778).

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On April 25, 2016, the parties filed before successor Judge Scott C. DuPont

a Joint Stipulation for Entry of Final Judgment, informing the lower court that

“there are no further issues remaining for adjudication by the Court.” (R. 852-854).

The Final Judgment, dated April 29, 2016 (but rendered April 28, 2016),

incorporated the April 24, 2015 Order on Plaintiffs’ Motion for Partial Summary

Judgment. The Order was the basis of the Court’s finding and declaration “that the

Amendment Clause of the Declaration permits the Defendant to amend the

Declaration by an affirmative vote of two-thirds of the votes of the members who

were present in person or by proxy at a meeting duly called.” Final Judgment, ¶ 2

(R. 855-854).

This appeal followed, pursuant to the Notice of Appeal filed by Owner on

May 18, 2016. (R. 864-866).

SUMMARY OF THE ARGUMENT

The members of Ocean Hammock Property Owners Association voted in

favor of certain amendments that affected the future use of Ocean Ridge Blvd.

South’s property for short term rentals. This appeal challenges the Owner’s

unsuccessful attempt to convince the trial court that it was entitled to a different

outcome. Association submits that the lower court was correct and that Owner has

no legal authority that supports its position.

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In 2013, the Vosses purchased the subject property in the Ocean Hammock

community with the intention of including it in a related short-term rental business.

During that same period of time, the members of the Ocean Hammock community

were also involved in an effort to amend its Association’s Declaration to clarify the

uses that could be made of residential properties, including the manner in which

they could be rented on a short-term basis.

When the amendments were put to a vote at Association’s annual meeting,

759 of approximately 1050 members entitled to vote were present at the meeting in

person or by proxy (approximately 72 percent of the eligible membership). The

three proposed amendments all passed by the requisite affirmative votes of two-

thirds of the 759 votes cast (643, 558, and 520, respectively – more than the

required threshold of 506 votes).

Owner is no doubt displeased at the outcome of the vote, and in this appeal

has attacked the Association’s interpretation of how many votes were required to

enact the 2013 Amendments. Owner posits that: a) the Declaration required that

the amendments be passed with the affirmative votes of two-thirds of the

approximately 1050 members eligible to vote at that time (693 members) and b)

that the Amendment Clause’s provision that the two-thirds vote come from the

votes cast by members “who shall be present” in person or by proxy is a mandatory

command that all 693 members be present at the meeting where the vote is taken.

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The lower court, in a well-reasoned order entered in Association’s favor –

the Order granting partial summary judgment – disagreed with the Owner’s

argument that the trial judge would be improperly rewriting the contract if it did

not read the word “shall” as a mandatory command. The trial court correctly

rejected this unpersuasive argument and instead interpreted the entire phrase “who

shall be present,” to mean, in its full context, “who are present.”

More significantly, while Owner recognizes that a contract such as the

Association’s Declaration is to be construed in accordance with its plain language

and in a manner which gives effect to its words, it offers an interpretation of the

Amendment Clause that disregards this settled law of contract construction. There

are two separate methods in the Amendment Clause for enacting amendments. One

requires two-thirds affirmative approval of all the Association’s members

(applicable where there will be no notice, no meeting and no vote on the proposed

amendment). The other is based on notice, a quorum, and a “duly called”

membership meeting, and requires a two-thirds affirmative vote of those present in

person or by proxy. Yet Owner believes that an affirmative vote of two-thirds of

the entire voting membership is required in both scenarios. As the lower court

recognized, such an interpretation is inconsistent with the Amendment Clause’s

plain language. Moreover, Owner’s interpretation inappropriately renders language

in the second method superfluous.

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Owner is a member of a community that has agreed to govern itself through

a democratic process. As such, Owner is subject to the governing documents of the

Association. The lower court reviewed these documents and confirmed that the

Association gave the requisite notice of the proposed amendments, scheduled a

meeting for the vote, and ensured that a quorum was present. However,

Association was not under the obligation to guarantee that all of its members

would turn out to vote – instead, that was a decision left to each member.

The amendment process was conducted in accordance with the Amendment

Clause, as reasonably interpreted and implemented by Association. The trial court

rightly declared that the amendments were correctly passed and enforceable.

ARGUMENT

THE TRIAL COURT CORRECTLY DECLARED THAT

AMENDMENTS TO ASSOCIATION’S DECLARATION WERE

PROPERLY ENACTED UPON THE AFFIRMATIVE VOTE OF

TWO-THIRDS OF THE VOTES OF ASSOCIATION

MEMBERS WHO WERE PRESENT IN PERSON OR BY

PROXY AT A DULY CALLED MEETING OF THE

MEMBERSHIP.

A homeowners’ association acts pursuant to its governing documents. See

Webster v. Ocean Reef Cmty. Ass’n, Inc., 994 So. 2d 367, 370 (Fla. 3d DCA 2008)

(“Association ‘may not act in any way not authorized in its articles of

incorporation or bylaws.’”) (citation omitted). Florida courts recognize that

community association declarations are in the nature of contracts, and, therefore,

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“well-established rules of construction” control their review. Shields v. Andros Isle

Prop. Owners Ass’n, Inc., 872 So. 2d 1003, 1005 (Fla. 4th DCA 2004).

I. The Lower Court’s Interpretation Of The Declaration’s

Amendment Clause Is Reviewed De Novo.

The Final Judgment entered by the trial court involves the interpretation of

the Amendment Clause of the Association’s Declaration. An Association’s

governing documents are treated as contracts, and are therefore subject to de novo

review. See Le Scampi Condo. Ass’n, Inc. v. Hall, 2016 WL 3653520, at *2 (Fla.

2d DCA July 8, 2016) (“Because the trial court's interpretation of restrictive

covenants is a question of law, it is subject to a de novo review on appeal. Whitley

v. Royal Trails Prop. Owners' Ass'n, Inc., 910 So. 2d 381, 383 (Fla. 5th DCA

2005)”); Retreat at Port of the Islands, LLC v. Port of the Islands Resort Hotel

Condo. Ass’n, Inc., 181So. 3d 531, 532 (Fla. 2d DCA 2015) (“…organizational

bylaws are treated as contracts, and we review construction of those bylaws de

novo.”) (citation omitted); and Klinow v. Island Court at Boca W. Prop. Owners’

Ass’n, Inc., 64 So. 3d 177, 180 (Fla. 4th DCA 2011) (“The interpretation of a

contract or a covenant is a matter of law, and, therefore, reviewable by an appellate

court using a de novo standard of review.”)

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II. The Amendment Clause Was Correctly Construed By The

Lower Court Based Upon Its Plain Language.

As required by well-settled law, the lower court interpreted the Amendment

Clause by reviewing the language contained therein, relying on its plain meaning,

common usage and context. In doing so, the court applied basic principles of

contract law, the foremost of which is to honor the intent of the parties. See Whitley

v. Royal Trails Prop. Ass’n, Inc., 910 So. 2d 381, 383 (Fla. 5th DCA 2005) (“The

parties' intention governs contract construction and interpretation….”).

In Whitley, this Court noted that “…the best evidence of intent is the

contract's plain language.” Id. at 383 (citation omitted). As summarized in Retreat

at Port of the Islands, LLC v. Port of the Islands Resort Hotel Condo. Ass’n, Inc.,

181 So. 3d 531, 533 (Fla. 2d DCA 2015):

‘Generally, a trial court should rely on the plain meaning of a

contractual document when its language is clear and

unambiguous.’ McKeever v. Rushing, 41 So. 3d 920, 923 (Fla.

2d DCA 2010). Contractual provisions are construed in the

context of the entire agreement. See Richland Towers, Inc. v.

Denton, 139 So. 3d 318, 321 (Fla. 2d DCA 2014). Courts must

strive to read a contract in a way that gives effect to all of the

contract's provisions. See City of Homestead v. Johnson, 760

So. 2d 80, 84 (Fla. 2000); Bethany Trace Owners' Ass'n v.

Whispering Lakes I, LLC, 155 So. 3d 1188, 1191 (Fla. 2d DCA

2014).

See also, Lowe v. Winter Park Condo. Ltd. P’ship, 66 So. 3d 1019, 1021 (Fla. 5th

DCA 2011) (“The rule of construction relating to contractual terms requires ‘courts

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to read provisions of a contract harmoniously in order to give effect to all portions

thereof.’") (citation omitted).

Further, in giving effect to language in a contract, the court must ensure its

reasonable interpretation. See Silver Shells Corp. v. St. Maarten at Silver Shells

Condo Ass’n, Inc., 169 So. 3d 197, 203 (Fla. 1st DCA 2015) (“‘In construing the

language of a contract, courts are to be mindful that ‘the goal is to arrive at a

reasonable interpretation of the text of the entire agreement to accomplish its stated

meaning and purpose.’”) (citations omitted); Bethany Trace Owners’ Ass’n, Inc. v.

Whispering Lakes I, LLC, 155 So. 3d 1188, 1191 (Fla. 2d DCA 2014) (“When

interpreting contractual provisions, courts ‘will not interpret a contract in such a

way as to render provisions meaningless when there is a reasonable interpretation

that does not do so.’”) (citations omitted); and Whitley, 910 So. 2d at 385 (“‘An

interpretation of a contract which gives a reasonable, lawful and effective meaning

to all of the terms is preferred to an interpretation which leaves a part

unreasonable, unlawful or of no effect.’”) (citation omitted).

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A. The Amendment Clause Contains Alternative Methods for

Adoption of Amendments to the Declaration.

Association and Owner agree that Article XI, Section 1 of the Declaration

sets forth two methods by which amendments to the Declaration can be enacted,9

unless provided for otherwise in specific sections of the Declaration.10

However,

the parties strongly disagree on how each method is implemented pursuant to the

Amendment Clause.

The first method is encompassed in the second and third sentences of the

Amendment Clause. Under this first method, holders of at least two-thirds of the

votes of the membership can enact an amendment by executing an instrument in

recordable form or recording a duly adopted resolution. Association submits – and

the lower court agreed – that this method neither requires a vote of the

9 Association, early in the litigation and for ease of argument, referred to the two

methods of amending as the “Written Resolution Method” (the procedure outlined

in the second and third sentences of the Amendment Clause, where action can be

taken without a membership vote) and the “Duly Called Meeting Method” (the

procedure outlined in the fourth and fifth sentences of the Amendment Clause,

which encompasses a vote of the membership). There is no legal significance to

this nomenclature, and the lower court did not rely on either reference in its

rulings. 10

For example, Article XIV provides, in pertinent part, that termination of the

Master Declaration itself may occur “at any time by recordation of an instrument

signed by the then holders of eighty percent (80%) of the votes in the Association

and their first mortgagees….”. (R. 306). Article VII, Section IV, has its own

voting requirements with respect to special assessments (R. 281). Article X,

Section 6 likewise provides its own voting requirements should owners wish to

cancel or modify a previously-enacted rule or regulation. (R. 295).

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membership, nor notice of the proposed amendment to the membership body.

While Owner posits that a “duly adopted resolution” contemplates a “vote,” there

is nothing in this first sentence that references a vote of the membership.11

The trial

court confirmed, in stating, “Significantly, this sentence of the Amendment Clause

does not call for an actual vote of the Association’s membership to be held.” (R.

747).

The second method of amendment is the one at issue in this case. It appears

in the fourth and fifth sentences of the Amendment Clause, and contemplates a

vote of the membership. Contrary to Owner’s position, these sentences set forth a

specific amendment method and are not a mere procedure for implementing the

method in the second sentence – the one that does not contemplate a membership

vote. This method provides that the “affirmative vote required for adoption shall be

two-thirds (2/3) of the votes of the Members (without regard to class)12

who shall

be present in person or by proxy at a meeting duly called….” This second method

11

For instance, it is common corporate practice for resolutions to be voted upon by

a board of directors, and with respect to amendments proposed under the first

amendment method, ratification by the board makes perfect sense. In any event,

the more specific requirements in the fourth and fifth sentences govern when the

vote of the membership is at issue. 12

As the lower court noted in its partial summary judgment Order, the phrase

“without regard to class” in the Amendment Clause relates to the time of the

Declaration’s adoption, when the developer still retained control of the properties,

and there were classes of ownership. (R. 747).

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also requires that each Association member receive written notice of the proposed

amendment prior to the meeting and that a quorum be in attendance when the

meeting is called.

The trial court’s summary judgment Order summarized Owner’s

interpretation as requiring “at least two-thirds of the entire membership to be

present at the meeting. Owner’s interpretation would also require at least two-

thirds of the entire membership to vote in the affirmative in order to amend the

Declaration.” (R. 748).

The court next described the Association’s contrary interpretation, which

asserts “that the phrase ‘who shall be present’ means ‘who are present’”. (R. 748).

The court agreed with that reading of the phrase, and with Association’s view that

“if a meeting of the membership is duly called (i.e. proper notice is given) and a

quorum is present, then the Declaration may be amended provided the amendment

receives an affirmative vote of two-thirds of those members who are present at the

meeting in person or by proxy.” (R. 748).

Although Owner and Association have offered competing interpretations of

the voting language in the Amendment Clause, neither party has taken the position

that the language in the disputed wording of the Amendment Clause is ambiguous.

As noted in American Med. Int’l v. Scheller, Inc., 462 So. 2d 1, 7 (Fla. 4th DCA

1984), “A true ambiguity does not exist merely because a contract can be

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interpreted in more than one manner.” Indeed, the trial judge, noted that while the

language “may be a bit stilted, in no way is it ambiguous.” (R. 748).

Owner erroneously ignores the plain language of the Amendment Clause in

its full context. The trial court rejected Owner’s argument that it should be

interpreted so that the votes necessary for approval are the same whether the

amendments are enacted under the method which requires no notice and no

meeting (the second sentence of the Amendment Clause) or the method which

requires prior notice, and a meeting at which a quorum is present (the fourth and

fifth sentences of the Amendment Clause). As the lower court noted, there are

extra procedural requirements attendant to passage of an amendment by vote –

prior notice and attendance of a quorum. (R. 747-748).

Further, Owner’s reading of the Amendment Clause is inconsistent with its

actual wording, as the trial court recognized. In the partial summary judgment

Order, the court detailed the differences between the two methods of passing an

amendment to the Declaration. As the trial judge noted,

The simple fact that the fourth sentence begins with the

conditional clause ‘If a proposed amendment is to be adopted

by vote’ makes clear that an amendment can be adopted other

than by vote, i.e. by the unilateral action of the holders of at

least two-thirds of the votes in the Association.

(R. 747).

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The Amendment Clause clearly allows passage of the amendment based on

the following langauge: ‘If adopted by vote, affirmative vote required for adoption

shall be two thirds (2/3) of the votes of the Members (without regard to class) who

shall be present in person or by proxy at a meeting duly called.” As the lower

court stated, “Nowhere does that sentence impose an additional requirement that

two-thirds of the entire Association membership attends the meeting at which the

vote is taken, and the sentence cannot reasonably be read otherwise.” (R. 748).

The trial judge’s plain language analysis resulted in the only reasonable

interpretation of the subject clause. As the court concluded, “the Association’s

construction of the Amendment Clause is the most reasonable one.” (R. 748). This

conclusion was adopted and incorporated into the Final Judgment. (R. 855).

1. The last sentence of the Amendment Clause

specifying that an amendment is “effective upon

recordation” does not relate to a method of

amendment, but only to the effective date of the

enacted amendment.

Owner has suggested that the last sentence of the Amendment Clause which

provides for the recordation of the “executed amendment or the certified copy of

the duly adopted resolution” must be read to limit the methods of amendment to

those referred to in the second sentence of the Amendment Clause. Yet, this faulty

reading would only encompass amendments which, as the trial court noted, do “not

call for an actual vote of the Association’s membership to be held.” (R. 747).

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Owner states in the Initial Brief, p. 16, that “the trial court did not discuss or

even mention the last sentence of the Amendment Clause.” Association points out

that there was a good reason why the lower court did not address the last sentence.

Neither party argued below that the last sentence was significant. Neither party

even referred below to the last sentence. See Fi-Evergreen Woods, LLC v. Estate

of Vrastil, 118 So. 3d 859, 864 (Fla. 5th DCA 2013), where this Court rejected a

party’s attempt to offer an additional basis for finding an arbitration agreement

unenforceable and stated, “Appellee never raised this argument below, and we will

not consider it for the first time on appeal.”

Regardless, it is clear from the plain language of the sentence that it is

irrelevant to the methods by which an amendment to the Declaration can be

adopted. The sentence reads, “The amendment shall be effective upon recordation

of the executed amendment or the certified copy of the duly adopted resolution

among the Public Records of Flagler County, Florida.” (R. 301) (emphasis added).

The obvious purpose of the sentence is to provide for an adopted

amendment’s effective date, and the mechanism for its taking effect. The

recordation’s significance is noted in section 720.301 (8) (a), Florida Statutes,

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which defines an association’s governing documents to include amendments to the

declaration which have been “duly adopted” and “recorded.” 13

The manner in which the last sentence refers to the amendments does not

mean that only the amendments as referenced in the second sentence are intended

to be valid. Rather, the plain language of the previous sentences dealing with the

amendment process contains the relevant references. Recordation is unrelated to

enactment; its purpose is to provide notice. See, e.g., Gaines v. Sayne, 764 So. 2d

578, 583 (Fla. 2000) (discussing the procedural and ministerial nature of

recordation).

After their passage by the membership vote at the duly called December 7,

2013 meeting, pursuant to the provisions of the fourth and fifth sentences of the

Amendment Clause, the 2013 Amendments were executed in the Certificate of

Amendment. (R. 734-739). The recordation of the Certificate of Amendment on

December 13, 2013, provided the required notice of the effective date of the 2013

Amendments.

13

By analogy, see article III, section 9, Florida Constitution, which sets forth the

specifics of when an enacted law becomes effective. Article III, section 9 provides,

“Each law shall take effect on the sixtieth day after adjournment sine die of the

session of the legislature in which enacted or as otherwise provided therein. If the

law is passed over the veto of the governor it shall take effect on the sixtieth day

after adjournment sine die of the session in which the veto is overridden, on a later

date fixed in the law, or on a date fixed by resolution passed by both houses of the

legislature.”

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2. The phrase “who shall be present” means “who

are present” for purposes of the voting procedures in

the Amendment Clause.

Owner submits that its interpretation of the Amendment Clause rendered it

unnecessary for the lower court to address the meaning of the phrase referring to

“Members who shall be present” in the fourth sentence of the Amendment Clause.

However, Owner also argues that the phrase is a mandatory requirement that the

meeting actually be attended in person or by proxy by two-thirds of all of the

Association’s members.

As Owner appears to recognize, see Initial Brief, p. 21, the word “shall” is

part of the phrase “who shall be present,” and is not an isolated word with a

context apart from the words surrounding it. However, by focusing on the word

“shall,” Owner ignores a basic rule of contract construction that “terms of a

contract are not to be considered in isolation, but as a whole and in relation to one

another.” Jerry’s, Inc. v. City of Miami, 591 So. 2d 1000, 1001 (Fla. 3d DCA

1991).

The trial court appropriately rejected Owner’s argument that “shall” has a

mandatory context as used in the Amendment Clause. As Judge Orfinger ruled,

“the word ‘shall’ as used in the Amendment Clause is unambiguous” and that the

phrase “‘who shall be present’ means ‘who are present.’” (R.748).

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The court’s interpretation is consistent with analogous “who shall be”

phrases which can only be interpreted as “is” or “are” under common sense

readings, and not as mandatory commands. See, e.g., Bugg v. City of Boonville,

372 S.W. 3d 76, 80 (Mo. Ct. App. 2012), (“[e]very member who shall be present

when a question is stated by the chair shall vote thereupon, unless excused by the

council, or unless he is prohibited by section 2-108 of this Code, in which case he

shall not vote.") (emphasis added); and Loyal Oak Swim Club, Inc. v. City of

Norton, 1990 WL 51988, at *5 (Ohio Ct. App. Apr. 25, 1990) (“Service of notice

of any special meeting shall be deemed conclusively to have been waived by the

mayor or by any councilman who shall be present at such meeting.”) (emphasis

added). See also, Humane Soc’y of Broward Cty., Inc. v. Fla. Humane Soc’y, 951

So. 2d 966, 968 (Fla. 4th DCA 2007) (concerning section 542.22(1) of Florida’s

Antitrust Act, which reads, in pertinent part, “Any person who shall be injured in

her or his business or property by reason of [a violation of the Act] may sue

therefor….”) (emphasis added).

Similarly, the Declaration itself illustrates how the word “shall” is used in a

non-mandatory way. One need only look at the definitions in Article I, most of

which define that the word “shall mean and refer to [definition].” See, e.g. Article

I, Section 35 (“Owner shall mean and refer to the record holder, whether one or

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more persons or entities, of fee simple title to any Unit”). (R. 254). Clearly, “shall

mean and refer to” in this context means “means.”

The case relied upon by Owner for the proposition that the word “shall” has

a mandatory context when property is involved, Concerned Citizens of Putnam

Cty. for Responsible Gov’t v. St. Johns River Water Management Dist., 622 So. 2d

520 (Fla. 5th DCA 1993), has no relevance to the case here. In Concerned

Citizens, a dispute arose over the alleged failure of the local water district to

comply with legislation mandating that the district “shall” establish certain water

levels. Id. at 522. This Court noted, “Although there is no fixed construction of

the word ‘shall,’ it is normally meant to be mandatory in nature….The

interpretation of the word ‘shall’ depends on the context in which it is found and

upon the intent of the legislation as expressed in the statute.” Id. at 523. It is

obvious from the context that the “shall” at issue in Concerned Citizens is not the

“shall” at issue in the Amendment Clause.

The court’s construction of the phrase “who shall be present” is consistent

with the context of the sentence. The court correctly agreed with Association’s

interpretation of the Amendment Clause which gives effect to the alternative

method of passing an amendment to the Declaration contained in the fourth and

fifth sentences.

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B. Owner’s Interpretation of the Voting Requirements in the

Amendment Clause was Properly Rejected as

Unreasonable.

Not only was the lower court correct in adopting Association’s interpretation

of the Amendment Clause; the court was equally correct in disregarding Owner’s

flawed interpretation. As the court cautioned in American Med. Int’l, Inc. v.

Scheller, 462 So. 2d 1, 7 (Fla. 4th DCA 1984), “[i]ndeed, fanciful, inconsistent,

and absurd interpretations of plain language are always possible. It is the duty of

the trial court to prevent such interpretations.”

To adopt Owner’s interpretation would require the same manner of

participation in a membership vote as is required when amendments are enacted

without prior notice and without a meeting. This, as the court recognized, is not a

reasonable interpretation.

The lower court reasoned that Owner’s interpretation renders meaningless

the separate language in the fourth and fifth sentences describing action to be

considered at a membership meeting and setting forth the specifics of the notice

and affirmative vote necessary in that scenario. In rejecting Owner’s interpretation,

the lower court correctly applied the rule that “[a] contract is not to be read so as to

make one section superfluous, and so ‘[a]ll the various provisions of a contract

must be so construed…as to give effect to each.’” Universal Prop. & Cas. Ins. Co.

v. Johnson, 114 So. 3d 1031, 1036 (Fla. 1st DCA 2013) (citation omitted).

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Owner’s arguments as to the proper reading of the Amendment Clause

ignore the plain language of the clause itself, and, if adopted, would negate the

intent of the clause as evidenced in its provisions. The trial court properly

concluded that Owner’s interpretation was not a reasonable way to construe the

Amendment Clause.

III. The Declaration Contains Procedural Safeguards To Ensure

That Association Members Have The Opportunity To

Participate In The Governance Of Their Community.

Owner argues that a process that could result in the enactment of an

amendment by a vote of two-thirds of those attending a meeting in person or by

proxy at which only a quorum was present (defined in the bylaws as twenty-five

percent of the total voting interests) – even though that is not what happened in this

case, where there was considerable interest and a robust turnout – sets too low a

bar for amendments. Owner submits that such a process would leave the majority

“at the mercy” of the minority.

However, the Declaration, and the procedural safeguards provided therein –

including the timely provision to each member of written notice of the upcoming

meeting and the amendments to be considered – refute this argument. Compare the

Amendment Clause here with the amendment provision analyzed in Whitley, 910

So. 2d at 386, where this Court rejected an association board’s argument that the

use of a disjunctive “or” in an amendment provision “empower[ed] them to solicit

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the votes of only one class of owners to amend or repeal the Declaration.” The

Whitley board’s interpretation was disenfranchising; the Association’s

interpretation, which allows all members to vote regardless of class, is not.

Likewise, the lower court rejected Owner’s position that the Association’s

interpretation of the Amendment Clause “makes it unwisely easy to amend the

Declaration….” noting that “[w]hether or not this is the case, it is not this Court’s

province to second-guess the wisdom of the amendment process the Declarant

chose.” (R. 749). The court also disagreed that “Association’s interpretation of the

Amendment Clause permits an amendment upon ‘merely a willy-nilly vote of a

small handful of the total Members.’” (R. 749).

The lower court, in its Eleven Ocean Final Judgment, recognized that section

720.306, Florida Statutes, allows an association to promulgate its own procedures

for meeting and amendments. (R. 848). Further, the lower court in this case

analyzed the Amendment Clause itself and noted that while only a majority of

votes of those present at a meeting is required to pass ordinary business,

“amending the Declaration requires a two-thirds affirmative vote of those present

in person or by proxy. Thus, the percentage of the votes required to amend the

Declaration remains higher than the percentage necessary to approve other

business.” (R. 749).

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When the Declaration is read together with the Association’s Articles of

Incorporation and Bylaws, it is clear that the Association’s members have ample

opportunity for involvement in the governance of their community. Not only are

there multiple voting procedures – those encompassed in the Amendment Clause,

as well as with respect to specific issues – but under Article VII of the Articles of

Incorporation, the members choose the Board of Directors, (R. 341-343), at an

annual meeting established under the Bylaws in Articles 4.1 and 5.3. (R. 349, 353).

Special meetings can be called by ten percent or more of the members. Bylaws,

Article 4.2. (R. 349-350). There must be written notice of all meetings. Bylaws,

Article 4.3. (R. 350). A quorum is necessary before items scheduled for a vote at a

meeting can be acted upon. Bylaws, Article 4.4. (R. 350). Owners are allowed to

participate in meetings. Bylaws, Article 4.8. (R, 351). Minutes are available upon

request. Bylaws, Article 4.9. (R, 351). Meetings of the Board of Directors are

open Bylaws, Articles 6.1 and 6.2. (R. 353-354).

Additionally, as provided in the Amendment Clause and elsewhere in the

Declaration, meetings must be “duly called.” The word “duly” is defined as “in a

proper manner; in accordance with legal requirements.” Black’s Law Dictionary

611 (10th ed. 2014). Therefore, members have the right to meetings where notice

is received and a quorum is present.

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One reality of association-based life is the possibility that the association’s

governing documents may be changed. In Florida’s Supreme Court in Woodside

Vill. Condo. Ass’n, Inc. v. Jahren, 806 So. 2d 452, 464 (Fla. 2002), the Court

upheld a declaration amendment imposing rental restrictions on properties within

the association. The Jahren decision noted cases from other jurisdictions holding

that “a duly adopted amendment restricting either occupancy or leasing is binding

upon unit owners who purchased their units before the amendment was effective.”

Id. at 459, and held that “respondents were on notice that the unique form of

ownership they acquired…was subject to change through the amendment

process….” Id. at 461. Jahren stands for the overall proposition that “‘owners do

not have vested rights in the status quo ante.’” Id. at 460 (citing, with approval,

Apple II Condo. Ass’n v. Worth Bank & Trust Co., 659 N.E. 2d 93, 97 (Ill. Ct. App.

1995).

While Owner may understand that amendments affecting property use can

occur, there is no doubt disappointment that the votes against the 2013

Amendments did not carry the day. However, this does not mean that the process

by which the amendments were enacted was legally flawed. To the contrary,

Association conducted a proper vote on the proposed amendments – one attended

in person or by proxy by over seventy percent of the eligible voting membership,

and one in which a super-majority of those voting agreed that the Declaration

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should be amended. The trial court correctly recognized the validity of the process

by which the 2013 Amendments were adopted.

CONCLUSION

Association proceeded in accordance with the clear requirements of the

Declaration’s Amendment Clause in enacting the subject amendments. Therefore,

for the reasons discussed herein, Ocean Hammock Property Owners Association,

Inc. requests that this Court affirm the decision below.

Respectfully submitted,


Counsel for Appellee

Cole, Scott & Kissane Building, Suite 1400

9150 South Dadeland Boulevard

Miami, Florida 33156

Telephone: (786) 268-6705

Facsimile: (305) 373-2294

E-mail: [email protected]




By: /s/ Melinda S. Thornton

SCOTT A. COLE

FBN: 885630

MELINDA S. THORNTON

FBN: 261262





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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was

furnished via Electronic Mail on this 24th day of October, 2016, to J. Steven

Garthe, Esquire, [email protected], Counsel for Appellants, 523 North

Halifax Avenue, Daytona Beach, FL 32118.


MELINDA S. THORNTON

FBN: 261262

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.210(a), Fla. R. App. P., undersigned counsel hereby

certifies that this brief is submitted in Times New Roman 14-point font.


MELINDA S. THORNTON

FBN: 261262


Documents

OCEAN RIDGE BLVD. SOUTH, RECEIVED, … So. 2d 1 (Fla. 4th DCA 1984) ... See section 90.202, Florida Statutes. See also, Notice of Related Case filed in this appeal on August 23, 2016